On Monday we posted a story about some of the legal players involved in the case currently before an en banc panel of the 9th U.S. Circuit Court of Appeals that relates to the seizure of confidential drug test results on 104 Major League Baseball players conducted during the 2003 season.
News broke over the weekend that New York Yankees star Alex Rodriguez is one of the players who tested positive for taking a banned substance that year.
With none of the lawyers directly involved in the 9th Circuit case immediately available for comment, we repeated what now appears to be some dubious information being disseminated by the mainstream sports media: that the Major League Baseball Players Association was to blame for not having destroyed the test results, which were only part of a "survey" testing program. (MLBPA founder Marvin Miller lashed out at the media and the Justice Department in a wide-ranging interview with ESPN.com on Tuesday.)
An outside lawyer for the players union in the case, Elliot Peters of Keker & Van Nest in San Francisco, sent us an e-mail on Tuesday looking to clear up some what he insists are misconceptions about his client's conduct.
We caught up with Peters -- a veteran litigator who recently helped secure a high-profile settlement for Univision in a four-year-old royalties case -- just as he was ready to board a flight to New York:
Elliot, good to hear from you. Let's try to set the record straight on this. You say the players union could not have destroyed the drug samples of 104 players after the 2003 season?
That's right. The players association issued a press release on this [Monday night]. The season ended in October 2003 and the testing and tabulation of the results that [Comprehensive Drug Testing] was doing was finished by mid-November 2003. And then there was a grand jury subpoena served by the government around that same time asking for a whole lot of information about the testing program.
So those supposedly secret tests that everyone has been talking about could not have been destroyed at that time?
Everyone is saying, 'What a bunch of idiots, I can't believe they didn't destroy the test results.' Well it really isn't fair. Because if [the union] had done so in the only time they had to do it -- right after the World Series ends -- they would have been violating the law.
What was CDT doing at this point, circa October-November 2003?
Calculating the percentage of people who tested positive [in 2003]. That took a little bit of time.
Is it accurate to say that when prosecutors issued the grand jury subpoena, they only wanted the samples of 10 players linked to the BALCO investigation?
I don't remember the specific chronology, but I do remember that the first subpoenas were served on Major League Baseball, and that they didn't have the [drug testing] records. Neither the union nor the league ever had the records. The records were always held by CDT and [another drug testing company called] Quest. CDT administered the testing and Quest did the testing.
And I take it that the feds subsequently went after those companies as well?
Eventually there were subpoenas served on CDT and Quest but the information [federal prosecutors] were seeking was testing done under the collective bargaining agreement between the owners and the players association. So once the subpoenas were served, to the extent that we objected, it was really the business of the [union]. We went to the government and gave them a white paper about why the subpoenas were overboard -- because they asked for the testing results for every single player. This is all in the 9th Circuit opinions.
We'll get to those in a minute. But what was your central argument here?
We told them there are huge constitutional implications here, that there are privacy issues relating to subpoenaing private testing results of people's bodily fluids. So we filed a motion to quash their subpoenas. And then in response to that motion they went and executed these search warrants in April 2004 [seizing drug data stored in CDT and Quest labs] after we filed the motion to quash.
The very next day after that motion?
The next day. I guess because they didn't want to litigate that. So they got a search warrant for 10 players but they carted off the results for every single player and a lot of other people too that were at CDT like other sports organizations and a whole bunch of other test results. And we said, 'You can't do that, it's unconstitutional.' And three different federal judges agreed with us and told the government to give the stuff back.
What are the issues at stake now?
Whether the government has a right to the stuff beyond the 10 players -- and we've never disputed those 10. That's the [the primary] issue raised by the subpoena in November 2003. It's been before the courts with us mostly winning, quite frankly. Read Judge Sidney Thomas' dissent from the three-judge panel in the 9th Circuit. He tells the story and really takes the majority to task. At one point [Thomas] even asks if the Fourth Amendment has been repealed.
Okay, here's where things get a bit confusing. How many 9th Circuit opinions are there?
[The government appealed three consolidated BALCO-related cases at the district level] to the 9th Circuit, where there are two opinions. The government won the first one 2 to 1 in December 2006 and we filed a motion for rehearing en banc. And then we didn't hear anything for a year. Then in December 2007 the 9th Circuit comes out with a new 2 to 1 opinion. So we filed another motion for rehearing and that motion was granted. The 9th Circuit vacated [the previous rulings] to hear the case en banc this past Dec. 18. I argued the case in Pasadena and it sure sounds like we're going to win.
Sounds like an appellate ping-pong match.
You had this craziness in the 9th Circuit where they issue one opinion and then we motion for rehearing and then they issue a new opinion. And then all 11 judges say they want to hear the case en banc.
When do you expect a ruling by the en banc panel?
The last two times it's taken a year each time. So go figure.
Now this list of the 104 players who tested positive in 2003, since the government has that in its possession, would that be available to Barry Bonds through discovery for his upcoming perjury trial?
No. It's not part of the Bonds case. And [the government] doesn't have it. If they do, it's only for the purposes of litigating this case in the 9th Circuit. They've been ordered by three different judges to return [the list]. That's kind of why leaking [the list's] contents is really outrageous. Leaking itself is illegal but leaking something that you don't have any right to in the first place seems to be doubly outrageous.
Do you know who leaked the information about A-Rod?
Not at all. I really don't know. We sure didn't. But I should say it's particularly offensive to the players association to have something that was unlawfully seized in the first place then be unlawfully leaked.
Going back to the list, one thing I've been curious about is if the 2003 testing was to be conducted under the guise of anonymity, why were players' names attached to the samples? Was that something done by CDT?
No, the government did it. They couldn't go to Quest without a list of matching numbers with names [from CDT] and get a urine sample of someone like Bonds. They needed to put the two together.
Do you think the players association has gotten a bad rap as a result of the A-Rod revelations?
Yeah. It's reported publicly that [the players union's lawyers] are boobs when the truth is that this material is the subject of a grand jury subpoena. If you start destroying things, you'll go to jail. Even if that subpoena is not originally sent to you. All you have to be is aware of an ongoing grand jury investigation. And we were.
All interviews are condensed and edited for style and grammar.
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.